Bradford v. Khamooshian et al

Filing
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ORDER: (1) Denying 8 Motion to Excuse Exhaustion and (2) Dismissing Civil Action for Failure to Pay Filing Fees Required by 28 U.S.C. § 1914(a). Signed by Judge Cynthia Bashant on 12/6/2017. The court grants Plaintiff forty-five (45) days le ave from the date of this Order to re-open his case by: (a) prepaying the entire $400.00 civil filing and administrative fee in full or (b) completing and filing a Motion to Proceed IFP which includes both the affidavit and the certified copies of his trust account statement for the 6-month period preceding the filing of his complaint. (All non-registered users served via U.S. Mail Service)(mxn)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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RAYMOND ALFORD BRADFORD,
Plaintiff,
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Case No. 17-cv-02053-BAS-MDD
ORDER:
v.
(1) DENYING MOTION TO EXCUSE
EXHAUSTION (ECF No. 8) AND
K. KHAMOOSHIAN, et al.,
Defendants.
(2) DISMISSING CIVIL ACTION
FOR FAILURE TO PAY FILING
FEES REQUIRED BY
28 U.S.C. § 1914(a)
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Plaintiff Raymond Alford Bradford, currently incarcerated at Richard J. Donovan
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Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, filed this
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civil rights action pursuant to 42 U.S.C. § 1983 on September 25, 2017, in the Eastern
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District of California. (See ECF No. 1, Compl.)
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Because Plaintiff claims a physician at Alvarado Hospital Medical Center and a RJD
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doctor violated his Eighth Amendment right to adequate medical care in August and
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September 2017 (Compl. at 1-4), United States Magistrate Judge Carolyn K. Delaney
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determined the case should have been filed in the Southern District of California, and
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transferred it here pursuant to 28 U.S.C. § 1406(a) on October 5, 2017 (ECF No. 4).
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Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a), nor has
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he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a).
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He has, however, filed a Motion requesting that he be “excused” from 42 U.S.C.
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§ 1997e(a)’s exhaustion requirement (ECF No. 8), followed by supplemental declaration
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and points and authorities in support of his Motion (ECF Nos. 10, 12).
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I.
Failure to Pay Filing Fee or Request IFP Status
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All parties instituting any civil action, suit, or proceeding in a district court of the
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United States, except an application for writ of habeas corpus, must pay a filing fee of
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$400.00. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to
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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”
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Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d
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1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed.
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See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
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Section 1915(a)(2) requires all persons seeking to proceed without full prepayment
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of fees to submit an affidavit that includes a statement of all assets possessed and which
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demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir.
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2015). In support of this affidavit, prisoners like Plaintiff must also submit a “certified copy
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of the trust fund account statement (or institutional equivalent) for . . . the 6-month period
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immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.
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King, 398 F.3d 1113, 1119 (9th Cir. 2005). It is from the certified trust account statement
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that the Court assesses an initial payment of 20% of (a) the average monthly deposits in
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the account for the past six months, or (b) the average monthly balance in the account for
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the past six months, whichever is greater, unless he has no assets. See 28 U.S.C.
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§ 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then
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collects subsequent payments, assessed at 20% of the preceding month’s income, in any
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month in which his account exceeds $10.00, and forwards those payments to the Court
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until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
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Plaintiff has not paid the filing fee required to commence a civil action, nor has he
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filed a Motion to Proceed IFP, which includes both the affidavit required by 28 U.S.C.
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§ 1915(a)(1) and the certified copies of his trust funds account statements required by 28
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U.S.C. § 1915(a)(2). Therefore, Plaintiff’s case cannot yet proceed. See 28 U.S.C.
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§ 1914(a); Cervantes, 493 F.3d at 1051.
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II.
Motion to Excuse Exhaustion
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Plaintiff also asks that he be “excused” from having to comply with 42 U.S.C.
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§ 1997e(a)’s exhaustion requirement. (ECF No. 8.) Plaintiff contends Defendants
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“deliberately failed to process and return [his] emergency appeal” related to the claims
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alleged in his Complaint; therefore administrative remedies were not “available” to him.
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(Id. at 4.)
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The Prison Litigation Reform Act (“PLRA”) states that “[n]o action shall be brought
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with respect to prison conditions under section 1983 of this title, or any other Federal law,
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by a prisoner . . . until such administrative remedies as are available are exhausted.” 42
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U.S.C. § 1997e(a); Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 2017). Plaintiff is
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correct to note that “[t]he PLRA does not require exhaustion when circumstances render
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administrative remedies ‘effectively unavailable.’” Andres, 867 F.3d at 1078 (quoting
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Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010)). However, the “failure to exhaust
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is an affirmative defense under the PLRA, and . . . inmates are not required to specially
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plead or demonstrate exhaustion in their complaints.” Albino v. Baca, 747 F.3d 1162, 1169
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(9th Cir. 2014); Jones v. Bock, 549 U.S. 199, 204, 216 (2007).
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Instead, assuming Plaintiff requests and is granted leave to proceed IFP, his
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Complaint survives the initial screening required by 28 U.S.C. § 1915(e)(2) and § 1915A,
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and the U.S. Marshal successfully effects service pursuant to Fed. R. Civ. P. 4(c)(3) and
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28 U.S.C. § 1915(d), it is Defendants’ responsibility “to present probative evidence that
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[Plaintiff] has failed to exhaust available administrative remedies under § 1997e(a).”
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Albino, 747 F.3d at 1169. “In most circumstances, the appropriate procedural mechanism
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is a motion for summary judgment under Federal Rule of Civil procedure 56, with the
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defendant[s] attaching the evidence necessary to demonstrate a failure to exhaust.” Jackson
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v. Fong, 870 F.3d 928, 933 (9th Cir. 2017) (citing Albino, 747 F.3d at 1166). “Once the
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defendant[s] ha[ve] carried that burden, the prisoner has the burden of production. That is,
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the burden shifts to the prisoner to come forward with evidence showing that there is
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something in his particular case that made the existing and generally available
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administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172.
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III.
Conclusion and Order
Accordingly, the Court:
(1)
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DENIES Plaintiff’s Motion to Excuse Exhaustion (ECF No. 8)
without prejudice as premature;
(2)
DISMISSES this action sua sponte without prejudice for failing to
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pay the $400.00 civil filing and administrative fee or to submit a
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motion to proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and
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1915(a); and
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(3)
GRANTS Plaintiff forty-five (45) days leave from the date of this
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Order to re-open his case by: (a) prepaying the entire $400.00 civil
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filing and administrative fee required by 28 U.S.C. § 1914(a) in full;
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or (b) completing and filing a Motion to Proceed IFP which includes
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both the affidavit and the certified copies of his trust account
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statement for the 6-month period preceding the filing of his
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Complaint required by 28 U.S.C. § 1915(a)(1), (2) and S.D. Cal.
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Civ. L. R. 3.2(b).
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If Plaintiff fails to either prepay the $400.00 civil filing fee or complete and submit
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a Motion to Proceed IFP within the time provided, this action will remain dismissed
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without prejudice based on Plaintiff’s failure to satisfy 28 U.S.C. § 1914(a)’s fee
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requirements and without further Order of the Court.
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IT IS SO ORDERED.
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DATED: December 6, 2017
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